DIVAN, J. - (1.)THE petitioner herein is the Income -tax Officer, Special Investigation Circle VII, Ahmedabad, and at the relevant time he was in charge of the matter pertaining to the second respondent herein. The second respondent -firm was a registered firm for the purpose of the Income -tax Act, and it was manufacturing hosiery goods in Ahmedabad. In the course of assessment proceedings for the assessment proceedings for the assessment year 1964 -65, the then Income -tax Officer noticed that the second respondent was dissolved and each of the partners had distributed amongst themselves all the assets including the machinery of the firm and this was done under the deed of dissolution dated August 31, 1964. It appears that on this machinery, development rebate had been allowed under the Indian Income -tax Act, 1922, under the provision of section 10(2)(vib), but the property was found to have been transferred by the firm to its partners before the expiry of the statutory period prescribed under the 1922 Act. The Income -tax Officer, dealing with the assessment proceedings for the year 1964 -65, came to the conclusion that the development rebate should be withdrawn and accordingly, he issued a notice under section 154 of the Income -tax Act, 1961 (hereinafter referred to as 'the 1961 Act'). The 2nd respondent -firm, the assessee, objected to the withdrawal of the development rebate but these objections were overruled and the Income -tax Officer passed an order purportion to have been passed under section 155 of the 1961 Act, withdrawing the rebate granted for the assessment years 1960 -61 and 1961 -62. These order withdrawing the rebate, were passed by the Income -tax officer on November 8, 1965. Against the decision of the Income -tax Officer, the second respondent -firm filed appeals before the Appellate Assistant Commissioner, but both the appeals were dismissed by the Appellate Assistant Commissioner by his order May 4, 1967, and thus the decision of the Income -tax officer was confirmed. Against the decision of the Appellate Assistant Commissioner, the second respondent -firm filed appeals before the Income -tax Appellate Tribunal. Before the Tribunal, on behalf of the revenue, a preliminary objection was raised to the effect that though the order of the Income -tax Officer of November 8, 1965, purported to be an order under section 155 of the 1961 Act, in effect and in substance, it was an order passed under section 35 of the 1922 Act, and relying upon the decision of the Supreme Court in S. Sankappa v. Income -tax Officer, Central Circle II : [1968]68ITR760(SC) , it was contended that for the assessment years 1960 -61 and 1961 -62, the returns having been filed before the commencement of the 1961 Act, the proceedings for withdrawal of development rebate were governed by section 35(11) of the 1922 Act by virtue of the provisions of section 297(2)(a) of the 1961 Act. It was further contended that under the 1922 Act, there was no provision for appeal against an order of rectification passed under section 35 of the 1922 Act, and, hence, appeal before the Appellate Assistant Commissioner against the order of the Income -tax officer was not competent and not maintainable. This preliminary objection was upheld by the Tribunal and by its order dated March 5, 1970, the Tribunal held that the appeal to the Appellate Assistant Commissioner against the order of the Income -tax Officer in the present case was incompetant and thus by this decision of March 5, 1970, the order of the Income -tax Officer was confirmed by the Tribunal.
(2.)THE second respondent -firm applied to the Appellate Tribunal for rectification of the order dated March 5, 1970, and at the hearing of that miscellaneous application for rectification, the decision of the Supreme Court in M. M. Parikh, Income -tax Officer, Special Investigation Circle 'B' Ahmedabad v. Navanagar Transport and Industries Ltd. : [1967]63ITR663(SC) was cited and the Tribunal, by its order dated August 26, 1970, made in the miscellaneous application set aside its order dated March 5, 1970, purporting to act in exercise of its powers of rectification under section 234, sub -section (2), of the 1961 Act and directed that the appeals of the second respondent -firm should be heard afresh. It is this order of the Appellate Tribunal of August 26, 1970, which has been challenged by the petitioner in this special civil application. This petition has been filed under articles 226 and 227 of the Constitution of India and the main contention on behalf of the petitioner is that the Tribunal had no jurisdiction to rectify the order as it purported to do.
On behalf of the second respondent -firm two preliminary objections have been urged. It was first contended that the alternative remedy by way of a reference against the order of the Tribunal rectifying its earlier order being the order of rectification dated August 26, 1970, is available to the department according to law and, therefore, this extraordinary remedy under articles 226 and 227 of the Constitution should not be allowed to be availed of by the department. This preliminary objection must be rejected because it is well -stated law that when a particular Tribunal has acted without jurisdiction, the question of alternative remedy does not arise and if the High Court, while exercising powers under articles 226 and 227 finds that the Tribunal did exercise its powers, though it had no jurisdiction to do so, the order of the Tribunal in question will be quashed and set aside and the question of alternative remedy in such a case does not arise. This well -settled position in law arise from the fact that an order passed without jurisdiction is non est.

(3.)IT was further contended on behalf of the second respondent -firm by Mr. Pathak that there has been delay and laches on the part of the revenue in approaching this court by this special civil application. Mr. Pathak contended that on August 26, 1970, the Tribunal passed the order of rectification which is being challenged in these proceedings. Thereafter, the reference application which had been filed by the second respondent -firm against the order of March 5, 1970, asking for a reference on a point of law to this High Court were withdrawn by the second respondent -firm on September 18, 1970, and on December 17, 1970, the present special civil application was filed by the revenue. Mr. Pathak also contended in this connection that by this delay of nearly three months and 21 days in approaching this High Court, the revenue has rendered it impossible for the 2nd respondent -firm to approach the Tribunal for reference applications against the order of March 5, 1970. Now, as long as the order of August 26, 1970, stands and has not been set aside by the High Court in exercise of its power under articles 226 and 227 of the Constitution, there is no question of any reference application having to be made or any reference having to be sought by the second respondent -firm. It is only if the present special civil application succeeds and the order of March 5, 1970, is restored that the question of any reference application in connection with the order of March 5, 1970, would arise. In our opinion, it cannot be said, as has been urged by Mr. Pathak at the time of the hearing before us and as had been urged in the affidavit -in -reply on behalf of the 2nd respondent -firm that the time between August 26, 1970, when the order of rectification was passed by the Tribunal and December 17, 1970, when the present special civil application was filed, was deliberately allowed by the revenue to elapse so that it might not be possible for the second respondent -firm to adopt proceedings seeking reference on a question of law to this High Court. In our opinion, since the order of August 26, 1970, was in favour of the second respondent -firm, there was no question of that firm seeking any reference to this High Court and, hence, there was no question of the second respondent -firm being prejudiced in any manner by reason of the fact that the special civil application came to be filed on December 17, 1970. On the facts of this case, it cannot be said that there has been such delay or laches on the part of the revenue as would disentitle the petitioner to get the relief that he seeks at the hands of this court.
;